My Lords, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his kind words, and to other noble Lords for their engagement on this Bill. I think we are meeting again very shortly, almost immediately after Committee stage concludes, and I will continue to engage closely with all interested parties, bodies and noble Lords across the House on this legislation.
With one thing the noble Lord said, I could not agree more: to be honest, I would be more than happy for the people and the Assembly of Northern Ireland to deal with most of the matters in the Bill. However, I set out to the House at Second Reading and, to some extent, last week in Committee, why and how it went from being primarily a Northern Ireland Executive and Assembly responsibility to a UK Government one. Martin McGuinness and Peter Robinson came to see the then Secretary of State after Stormont House and said, “This is all far too difficult for us to do at Stormont. Please will you do it all at Westminster?” We agreed.
I also agree with those noble Lords who have argued that central to the effective delivery of this legislation is the need for an independent body to carry out reviews, including investigations, and to grant, where the tests are met, immunity from prosecution. The Government fully recognise the need for commissioners to have credibility, expertise and legitimacy, so that effective reviews and investigations can be carried out and information provided to families as soon as possible. The UK-wide nature of the legislation provides for the appointment of a person who holds or has held high judicial office across the United Kingdom. It would therefore not be appropriate, in our view, for the appointment function to sit with the Northern Ireland Judicial Appointments Commission, which, by definition, is concerned solely with judicial appointments within Northern Ireland.
I respectfully disagree with the noble Lord, Lord Browne of Ladyton, and others who have spoken about the independence of the commissioner if he or she is appointed by the Northern Ireland Secretary. The Northern Ireland Act 1998, as the noble Lord alluded, provides the Secretary of State with the power to appoint the commissioners of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. The Inquiries Act 2005, passed by the Government of which the noble Lords, Lord Murphy and Lord Browne, and the noble Baroness, Lady Smith of Basildon, were members, provides for the appointment of an inquiry panel by a Minister.
My experience of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland is that they are fiercely independent of government. I think nobody would dare suggest that the fact that they are appointed by the Secretary of State for Northern Ireland makes them in any way in hock to government. They carry out their duties with total independence and they are not slow, as we have seen in respect of this legislation and other legislation which has recently been before your Lordships’ House, to voice their criticisms and their opinions vociferously. Therefore I simply do not accept that appointment by the Secretary of State somehow limits or inhibits the independence of the commissioners.
Another example to which I could refer is that I was involved as a special adviser in the setting up the independent review into the on-the-runs administrative scheme back in 2014 which was conducted by the noble and learned Baroness, Lady Hallett, then Lady Justice Hallett. She was appointed in 2014 by the Northern Ireland Secretary in consultation with the Lord Chief Justice at the time. The appointment process did not in any way impact on the independence of the review.
To give a further example, in the absence of a sitting Executive in 2019, it was the then Secretary of State for Northern Ireland, Karen Bradley, who appointed the current Police Ombudsman for Northern Ireland. I do not think anyone would remotely suggest that Marie Anderson is influenced by His Majesty’s Government because she was appointed by the Northern Ireland Secretary, any more so than any of her distinguished predecessors—I am looking towards the noble Baroness, Lady O’Loan, as I make those comments.
The noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady O’Loan, referred to some of the overarching powers of the Secretary of State for Northern Ireland. The noble Lord, Lord Browne, raised specific concern over the winding-up power under Clause 33. I remind noble Lords that the Secretary of State has a similar wind-up power contained in the Inquiries Act 2005, which was passed by the previous Labour Government. In respect of this legislation, the Secretary of State for Northern Ireland may wind up the commission via an affirmative procedure that would have to be debated by both Houses of Parliament. The Government believe that it is for Parliament to have the final say in the potential winding-up and abolition of what Parliament has created. However, the winding-up order will be laid only when the Secretary of State is satisfied that it is has delivered on its functions.
The noble Baroness, Lady O’Loan, referred to some of the Secretary of State’s powers in relation to national security. I hardly need to remind her, given her various roles over the years in Northern Ireland, that the Northern Ireland Secretary ultimately has responsibility for national security in Northern Ireland. The powers contained in the Bill are very reflective of what was proposed in the Stormont House agreement and the draft legislation that accompanied it. The power is not in any way extraordinary. I hesitate to remind her that Section 65 of the Police (Northern Ireland) Act 1998 also requires the police ombudsman to have regard to guidance given by the Secretary of State on matters relating to disclosure and national security.
The noble Lord, Lord Hogan-Howe, raised an important point, and I will try to deal with it. Clause 30(2) stipulates that the Secretary of State may by regulations make provision about the holding and handling of information by the commission. This is about ensuring that information is held securely and destroyed when no longer needed. It is not intended to be a power to place restrictions on the use to which the information can be put nor is it a power to restrict the use of information as evidence in a prosecution. I hope that goes some way to answering the noble Lord’s query.
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I turn to the amendments in my name, which make it clear that, when appointing the Chief Commissioner, the Secretary of State should always consult the relevant senior judge and any other persons they consider appropriate. I did at one point toy with the idea of producing a list but decided against it on the grounds that every list is imperfect and open to challenge; that should be left to the Secretary of State’s discretion. I intend to set out in the coming weeks more information about how we expect the appointments process to take place to provide greater transparency. I hope that goes some way to answering the point raised by the noble Baroness, Lady Suttie. It will be proactive, of course, but I will provide more details on that point very shortly.
I recognise that some people query the value of consultation in this respect. I can only speak from experience, having worked as an adviser to six Northern Ireland Secretaries and now alongside three, in just over a year, in a ministerial capacity. I have always been fully confident in, and impressed by, the seriousness with which they carry out the duty to consult in respect of any appointments process. In my experience, these have never been box-ticking exercises but have been carried out with seriousness and propriety. As we take this legislation very seriously, we will take the appointments process seriously too.
To strengthen the commission’s independence, I have also brought forward an amendment requiring the Secretary of State to ensure that, as far as is practicable, there is at least one commissioner who has relevant international experience. This matter was brought up and debated at length in the other place at Committee stage, so the amendment is in large part a response to the debates that took place at the other end of the building. I stress that this does not require a foreign national; it can be a UK national with relevant international experience.
To respond on that point to my noble friend Lord Dodds of Duncairn, as well as the noble Baronesses, Lady Hoey and Lady Suttie, we want to avoid being overly prescriptive in trying to identify an individual or category of individual, but we would expect the person concerned to have experience working outside the UK. It could be a UK national who has worked outside the UK; for example, with experience of working with international organisations in such areas as peacebuilding or reconciliation. The amendment makes it clear that these criteria apply so far as is practicable and would not preclude an individual with UK-only experience from being appointed.
The aim of this amendment is to ensure that the commission benefits from the broadest range of experience, including gained in the UK and abroad, rather than excluding any particular type of relevant experience—as, alas, does Amendment 14A in the name of the noble Baroness, Lady Hoey. On this point, I have had representations from people saying that the commission should exclude anybody who has ever set foot in Northern Ireland, and from people saying it should include only those who have experience in Northern Ireland. I have had representations trying to exclude all sorts of people.
In response to the point about the Royal Ulster Constabulary, I made it clear last week, when we debated this at length, that there is no prohibition on former members of that fine police force being appointed to serve on the commission, or indeed on former members of the Historical Enquiries Team that Hugh Orde set up some years ago.
In conclusion, the Government believe that we have struck the right balance here and that there is no threat to the operational independence of the commission. It is far from unusual that the Secretary of State makes appointments to public bodies in Northern Ireland. That is very long-established and has worked effectively in the past, and I see no reason why it cannot work effectively in future.
On that note, I invite noble Lords not to press their amendments, as I of course shall not press mine.